The European Court of Human Rights: Some Lessons for a Future Regional Human Rights Court in Asia

서지정보

· 발행기관 : 중앙대학교 법학연구원
· 수록지 정보 : 法學論文集 / 38권 / 1호 / 147 ~ 176페이지
· 저자명 : 조희경

초록

Asia is the only region in the world that lacks a government-backed formal human rights charter. There is no regional human rights court or a commission but in the recent years, there is a growing voice that calls for such a mechanism for the region. This paper examines the model of the European Court of Human Rights from its inception and development in order to draw lessons, if any, that could be learned for the future establishment of an Asian regional human rights court.
The European Court of Human Rights is an institution created by the Council of Europe. The Council of Europe is an entity independent of and distinct from the European Union and in fact predates the origin of the European Union (or formerly, the European Community or even earlier, the European Economic Community) by some years. Post-war Europe was riven by ideological differences and economic disparities. The Council of Europe had a modest start with only ten small Western European states. When a proposal to create a court to adjucate on human rights matters that would allow individuals to bring complaint against states was put forward to these states, a majority of them were originally opposed. Despite the opposition, the proposal was eventually adopted by the political leaders but the court had very little actual power or influence for the first couple of decades of its life, sitting only as an ad hoc court and only after a screening of the complaints by a separate commission and also by the states themselves.
However, what began as an optional protocol that states could reject with regard to the question of whether to submit to the jurisdiction of the court or not soon became a non-optional political choice by any new states wanting to join the Council of Europe. The membership of the Council of Europe had become almost a de facto condition of the entry to the European Community (as it was then) and few politicians could afford to be seen as if they did not care sufficiently about human rights or that their states would not agree to promise to uphold the standards of protecting fundamental freedoms.
The structure and the processes of the European Court of Human Rights have also undergone significant changes to cope with a vastly increased membership and exponentially growing number of cases. In contrast to its earlier years, now it seems to be paying the price of too much success. Through the evolution of the European Court of Human Rights, we see how an institution that was once of very little consequence can evolve and develop into a significant and influential organisation that is vital not only to the region but to the global community. In this same vein, although currently, there seems to be little willingness even to consider a regional human rights court or even a commission in Asia, we see some small buds of development, such as the ASEAN human rights commission, which need to be encouraged. As the European example has shown, it does not need to start big or even to cover the entire region. What is important is that there is a beginning.

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